Regulating Groundwater In California: Will the Landscape Change With Gsa Formation?



Regulating Groundwater In California: Will The Landscape Change With GSA Formation?

by Wesley A. Miliband*


"The history of California is written on its waters . . ."

-Justice Ronald B. Robie

State Water Resources Control Board Cases (2006) 136 Cal. App. 4th 674

California is known for epic water wars, past and present, evident in part from Justice Robie’s statement quoted above. With landmark groundwater legislation passed into law late last year—the Sustainable Groundwater Management Act ("SGMA"1)—the landscape for groundwater regulation will change in the years and decades ahead. That much is certain, if for no other reason that groundwater basins in California will be mandatorily regulated and managed statewide for the first time in California’s 165-year history. What is uncertain is the extent to which unintended consequences or adverse impacts will result from implementing SGMA.

A foreseeable and potentially adverse, though theoretically avoidable, result arises from how groundwater basin boundaries correlate with the boundaries of Groundwater Sustainability Agencies ("GSA" or "GSAs") created under SGMA. GSAs will be responsible for achieving and maintaining sustainability. Complete contiguity between groundwater basin and GSA boundaries is ideal, yet is much more easily written than actually completed. Competition for GSA status within the same basin is already well underway in parts of the state. This issue of boundary contiguity is ripe for prophylactic efforts by and between stakeholders and local agencies so that GSAs can be formed with less controversy and more cooperation.

Also uncertain is whether SGMA will impair water rights. Though SGMA says water rights are not altered by implementation of SGMA, in some groundwater basins the groundwater production will in effect be reduced from historical demands in order to bring the basin back into "balance" for purposes of long-term sustainability of the resource. In turn, some individuals or entities with water rights may not be as free to fully exercise their water rights. Whether this impairment to water rights evolves into a dispute will depend on the factual, legal and political dynamics specific to each basin.

Regardless of its consequences, one could view SGMA’s aim toward sustainability as an extension of the public trust doctrine, particularly the "ecological" public trust doctrine for which the late renowned Professor Joseph Sax inspired. After all, SGMA’s key goal is to "provide for the sustainable management of groundwater basins."2

This article seeks to enhance understanding of SGMA and the "boundary issue" of groundwater basins and the GSAs anticipated to govern and manage the groundwater within those basins. To that end, a brief discussion of California water rights is provided as well as the historical regulatory structure of those rights, followed by exploration of SGMA’s framework and the challenges likely to occur with GSA formation, including the boundary issue. The article concludes by offering ideas designed to mutually advance respective interests of agencies and stakeholders.


Water rights are treated under California law as real property rights.3 Each water right is a usufructuary right, meaning use and access of the water as opposed to ownership of the water.4 A critical distinction exists between holding a "water right" versus "a right to water," with the former referring to a property and the latter referring to a contractual right.5 In effect, both involve extracting or diverting water from a specified source and applying the water to beneficial, non-wasteful use. While the practical effect can be the same or similar, the basis, rights and obligations arising from having a water right may differ significantly from those arising from a contractual right.

While many other western states utilize an appropriative water rights paradigm, California deploys a dual or hybrid system of riparian and appropriative rights.6

Types Of Water Rights

Given the intended focus on SGMA, only three types of water rights existing under California law are identified here: overlying, appropriative and prescriptive rights.

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When groundwater is the water supply source, a landowner’s water right generally is an "overlying right," which, "analogous to that of a riparian owner in a surface stream, is the right of the owner of the land to take water from the ground underneath for use on his land within the basin or watershed; the right is based on ownership of the land and is appurtenant thereto."7 Overlying right holders enjoy a "correlative share" to the water, generally meaning the overliers equally share the water.8

An "appropriative right" is one in which groundwater is produced and then used or sold for use outside of the parcel or area from which the water was produced, with the "taking of water for other than riparian or overlying uses potentially ripening into a prescriptive right."9 "As long as there is a surplus in the ground water area, appropriative rights relating to such surplus are just as valid and entitled to protection . . . [and] [s]uch appropriations may be made for the use of the water outside the ground water area, or for public utility use within the area."10 A particularly coveted appropriative right is the "pre-1914" right, which is a right perfected prior to the state’s adoption of the Water Commission Act of 1914.

The marked difference generally between overlying water rights and appropriative water rights is that appropriators have priority amongst one another based on "first in time, first in right" while no "overlying owner has priority over any others solely because he used the water first."11

"Prescriptive rights" are not acquired by utilizing "surplus" or excess water, but instead "an appropriative taking of water which is not surplus is wrongful and may ripen into a prescriptive right where the use is actual, open and notorious, hostile and adverse to the original owner, continuous and uninterrupted for the statutory period of five years, and under claim of right."12

Reasonable And Beneficial Use

All water use, including by those exercising water rights, in California is subject to being "reasonable and beneficial" to the exclusion of not "wasting" water. This mandate is embedded within the state constitution as well as statutory and decisional law. The reasonable and beneficial use mandates apply to groundwater.13

The California Supreme Court announced in 1903 the doctrine of "reasonable use," which "limits the right of others to such amount of water as may be necessary for some useful purpose in connection with the land."14Twenty-five years later, this doctrine was codified in a constitutional amendment that "prohibits the waste or unreasonable use, method of use, or method of diversion of water."15 Similarly required is applying water to "beneficial use." All "water, under whatever right the use may be enjoyed, is restricted to reasonable [and] beneficial use,"16 with the type of use(s) to which water is put being a key factor when evaluating water rights.17Various beneficial uses are enumerated in California regulations, including domestic, irrigation, power, municipal and recreational uses.18 The regulations’ list is not exhaustive.19

Units Of Measurements

Another key component regarding water and its use involves units of measurement. Various methodologies exist to quantify how much water is used, such as gallons per minute, usually used to compute pump capacity, well flow or domestic consumption; the standard miner’s inch of water or cubic foot of water per second; or an acre foot of water, "the equivalent of one acre of ground covered to the depth of one foot with water," which is used typically when water in storage is referred to or when agricultural use of water is involved.20


Prior to the enactment of SGMA, "percolating ground-water" was not subject to a statewide regulatory program, while surface water has been subject to regulation by the state for over 100 years.

"For more than a half-century, the courts in many decisions have created and developed the current rules that govern the water rights in the vast developments of ground waters in this state and, with marked consistency, the legislature has followed a hands-off policy."21 Whether simply an observation or a criticism, the learned Wells Hutchins uttered that statement 50 years ago with accuracy.22

Surface water, however, has been subject to statewide regulation since the state’s adoption of the Water Commission Act of 1914 (predecessor to today’s Water Code), which led to creation of the agency that later evolved into the State Water Resources Control Board and established today’s license and permit processes for surface water.23 Treated the same as surface water, subterranean stream water flowing through "known and definite channels" is "governed by the same principles as are rights to the use of surface streams,"24 thereby diving into what can be complex determinations of what is "percolating groundwater" versus "subterranean stream" flow. Fortunately, the law helps.

The law presumes that groundwater is percolating.25 From a technical standpoint, percolating groundwater refers to "water beneath the surface of the earth within the zone below the water table in which the soil is completely saturated with water, but does not include water that flows in known and definite channels."26 Stated differently, percolating waters are "wandering waters moved by gravity in any direction along the line of least resistance."27

While both water supply sources—surface water and groundwater—are now subject to statewide regulation, determining which type of water is being used is still critical for many reasons, including for establishing or defending water rights; navigating applicable regulatory processes; and making well-informed business and operational decisions.28

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On September 16, 2014, the Governor signed Senate Bill 1168, Assembly Bill 1739 and Senate Bill 1319, which together became the Sustainable Groundwater Management Act, effective January 1, 2015, and now codified in the Water Code commencing at section 10720. SGMA is California’s first comprehensive, statewide regulatory program for groundwater. With the California Department of Water Resources ("DWR") having determined a number of groundwater basins are in critical condition of "overdraft," SGMA identifies 43 groundwater basins as "high priority" and 84 as "medium priority."29 See Figure 1.

Figure 1: CASGEM Groundwater Basin Prioritization
This map of California shows basin prioritization rankings of high, medium, and low for different regions within the state. The Sustainable Groundwater Management Act identified 43 groundwater basins as high priority, and 84 as medium priority.
Image description added by Fastcase.

Overdraft means the amount of groundwater pumped from a basin exceeds the amount of water recharging a basin. These 127 basins must have Groundwater Sustainability Plans ("GSP" or "GSPs") by 2020 if the basin is in critical overdraft, or 2022 if not, with GSAs having until 2040 or 2042, respectively, to achieve groundwater sustainability.30 The 127 basins account for approximately 96 percent of the groundwater used in the state.31


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Key Definitions Under SGMA

Numerous definitions are contained within SGMA, with the following terms assisting to understand what SGMA intends to do:

(1) Sustainability Goal: "[T]he existence and implementation of one or more groundwater sustainability plans that achieve sustainable groundwater management by identifying and causing the implementation of measures targeted to ensure that the applicable basin is operated within its sustainable yield."32

(2) Sustainable Groundwater Management: "[T]he management and use of groundwater in a manner that can be maintained during the planning and implementation horizon without causing undesirable results."33

(3) Undesirable Results: One or more of the following effects caused by groundwater conditions occurring throughout the basin:

  1. Chronic lowering of groundwater levels indicating a significant and unreasonable depletion of supply if continued over the planning and implementation horizon. Overdraft during a period of drought is not sufficient to establish a chronic lowering of groundwater levels if extractions and recharge are managed as necessary to ensure that reductions in groundwater levels or storage during a period of drought are offset by increases in groundwater levels or storage during other periods.
  2. Significant and unreasonable reduction of ground-water storage.
  3. Significant and unreasonable seawater intrusion.
  4. Significant and unreasonable degraded water quality, including the migration of contaminant plumes that impair water supplies.
  5. Significant and unreasonable land subsidence that substantially interferes with surface land uses.
  6. Depletions of interconnected surface water that have significant and unreasonable adverse impacts on beneficial uses of the surface water.34

(4) Groundwater Sustainability Agency is defined in pertinent part as being "one or more local agencies . . . [f]or purposes of imposing fees . . . or taking action to enforce a groundwater sustainability plan."35

SGMA’s Implementation Timeline

With the objectives of SGMA clear, key milestones to be achieved are as follows:

(1) January 1, 2016: DWR must set emergency regulations for basin boundary revisions.36

(2) June 1, 2016: DWR must establish emergency regulations for evaluating GSPs.37

(3) January 1, 2017: Local agency or GSA deadline to submit an alternative to a GSP.38

(4) January 1, 2017: DWR anticipated to establish best management practices for sustainable management.39

(5) June 30, 2017: Deadline to form a GSA.40

GSA Formation And Powers

The purpose of GSAs is to serve as the primary agency to achieve groundwater sustainability by developing a GSP, with the GSP to consider the interests of all beneficial uses and users of groundwater within the basin.41

SGMA does not specify which local agency should be a GSA, though counties are presumed to be the GSA with an "opt out" option.42 A local agency can bypass forming a GSA by submitting an alternative plan to DWR if it believes the alternative meets the objectives of SGMA.43

So long as a local agency is located over a groundwater basin, the agency may elect to be a GSA for that basin, with "local agency" meaning a local public agency with a water supply, water management or land use responsibilities within a groundwater basin.44 A combination of agencies may form a GSA by way of a joint power agreement, a memorandum of agreement or other legal agreement.45So, the decision of "who is the GSA" is deferred to local interests including counties, subject to some exceptions set forth under Water Code section 10723(c)(1) in which 15 existing agencies are deemed to be the exclusive local agency within their respective statutory boundaries.

The GSA’s powers range from investigations of groundwater conditions, pumping and monitoring; imposition of fees involving groundwater extractions; and enforcement authority for alleged breaches of the GSP.46


With formation of GSAs already set in motion by SGMA taking effect this year, so, too, in motion are potential modifications to groundwater basin boundaries.

Fundamental definitions relevant to this process are "basin" and "Bulletin 118."47 SGMA defines a "basin" as a "groundwater basin or subbasin identified and defined in Bulletin 118 or as modified pursuant to Chapter 3 (commencing with Section 10722)."48 "Bulletin 118" refers to DWR’s "report entitled ‘California’s Groundwater: Bulletin 118’ updated in 2003."49

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The pending basin boundary process is led by DWR and subject to approval from the California Water Commission ("CWC"), which is a nine-member body appointed by the Governor and confirmed by the state senate. The basin amendment process allows a local agency to request revisions to basin boundaries currently set forth in Bulletin 118, presumably happening now to add flexibility to local agencies seeking to become a GSA or to otherwise better ensure success with a GSP.

When making a request, an agency must provide support with: "(1) Information demonstrating that the proposed adjusted basin can be the subject of sustainable groundwater management. (2) Technical information regarding the boundaries of, and conditions in, the proposed adjusted basin. (3) Information demonstrating that the entity proposing the basin boundary adjustment consulted with interested local agencies and public water systems in the affected basins before filing the proposal with the department. (4) Other information the department deems necessary to justify revision of the basin’s boundary."50

The requesting agency should be able to submit one or more basin modification requests for the same basin, whether the requests: (1) seek consolidation of existing boundaries or subdivision to existing boundaries; (2) are based on scientific conditions (i.e., geologic or hydrologic conditions that define the basin) or political/jurisdictional boundaries (e.g., counties, cities and special districts) to promote the adoption and implementation of effective GSPs; or (3) are a combination of any of the above. See Figure 2.

Figure 2: Basin boundaries
This figure shows the boundary in a basin in Central Valley where scientific conditions exist. Source: Water Education Foundation, The 2014 Sustainable Groundwater Management Act: A Handbook to Understanding and Implementing the Law (2015), Tab 1, p. 2.
Image description added by Fastcase.

Water Education Foundation, The 2014 Sustainable Groundwater Management Act: A Handbook to Understanding and Implementing the Law (2015), Tab 1, p. 2.

DWR will then assess: (1) the likelihood the proposed basin can be sustainably managed; (2) whether the proposed basin would limit the sustainable groundwater management of adjacent basins; and (3) whether there is a history of sustainable groundwater management of groundwater levels in the proposed basin.51

The specific timeline for this basin boundary process over the next year is:52

(1) July 17, 2015: Draft regulations for basin modifications posted to the DWR website,53 with a 60-day comment period, and three public meetings held in Sacramento, Bakersfield and Orange County. 54

(2) September 4, 2015: Deadline to comment on draft emergency regulations, with some local agencies having done so.

(3) October or November 2015: The CWC potentially adopts basin boundary regulations, followed by submittal to the Office of Administrative Law.

(4) January 1, 2016: Basin boundary regulations become operational and DWR accepts boundary requests for 90 days.

(5) August 2016: DWR anticipates preparing a draft approval (or disapproval) of local agency requests to present to the CWC.

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Future success of GSAs, GSPs and ultimately SGMA and its sustainability goal will very likely correlate strongly with the extent to which the boundaries of GSAs are contiguous with the boundaries of groundwater basins. Contiguous or coterminous boundaries of groundwater basins and GSAs simplify the inherently complex process of sustainable groundwater management, though a basin may have multiple GSAs and GSPs.

This ideal scenario might occur in some basins, but is unlikely for all basins based on the vast responsibility of being a GSA including the political, economic and technical dynamics involved with becoming and acting as a GSA. Some of these factors are clear already, evident by local agencies within the same basin competing for GSA status in some basins.55 To the extent this "competition" continues, several implications arise, as identified below.

How To Govern

Several models exist for GSA governance so that one or more GSAs govern a basin, which means one or more GSPs will exist, necessarily requiring coordination among those GSAs to ensure sustainability is achieved. First is a "Centralized GSA," which covers the entire basin and assumes all authorities and responsibilities, and which may be a new or existing agency.56 Second is "Distributed Governance," which allows several GSAs to be established covering a basin with the authorities for planning, implementing and monitoring all distributed among the GSAs.57To be successful under this model, significant coordination and cooperation are required and should be memorialized by agreement making it clear that each GSA assumes all responsibilities within its service area of the basin.58 The third model is a combination of the first two, aptly named "Combination GSA," with some responsibilities such as planning, public outreach and coordination done by the Centralized GSA, while the other GSAs split investigations, management and enforcement of the GSP governing the respective areas of the GSA.59 This third model requires even more coordination among multiple GSAs.

Accordingly, non-contiguous boundaries of groundwater basins and GSAs will require even greater cooperation among those local agencies seeking to become GSAs because multiple agencies will be regulating a common water supply source. The need for high-level cooperation is illustrated by a GSA’s responsibilities on technical aspects (e.g., investigating and monitoring groundwater flow direction and recharge sources) and fee assessments for infrastructure/conveyance systems.

Impact To Water Rights

Existing water rights may be impacted by SGMA implementation and potentially exacerbated by non-contiguous boundaries. "Nothing in this part shall be construed as authorizing a local agency to make a binding determination of the water rights of any person or entity."60 While SGMA states that implementation of SGMA does not alter water rights, stakeholders, practitioners and academics envision scenarios that may adversely impact water rights by ramping down or reducing a user’s actual production in order to bring a basin into balance, or its "sustainable yield."61 Otherwise, reaching the sustainable goal in high-priority and even medium-priority basins may not be achievable where historical ground-water demands exercised as water rights exceed the recharge or amount of water going back into the basin.

Further complicating whether and to what extent water rights might be impacted by SGMA implementation is the "boundary issue." For instance, a stakeholder with multiple parcels overlying the same basin may become subject to regulatory oversight by multiple GSAs, which would require—from a water rights perspective—these GSAs to recognize the overlying water right would still exist even if the political boundaries of multiple GSAs bisect the parcels for which the overlying water right exists.

Prohibition On Exports

With an appropriative right entailing use of water on lands different from where the water was produced, the term "export" often arises in the course of water rights evaluations, negotiations and disputes. "Export" often refers to using water outside of the basin or watershed from where the water was produced.62

In the world of SGMA, particularly where multiple GSAs exist within a groundwater basin thereby creating more political boundaries within a basin, the GSAs and stakeholders need to be mindful of whether an export truly occurs by looking to groundwater basin boundaries—and related technical aspects such as flow directions—as opposed to political boundaries. To follow the latter very well may be contrary to the science and unduly burden the water rights holder.

The Future Of Groundwater Adjudications

Just as AB 3030 plans63 and other cooperative efforts for groundwater management over the past several decades have allowed groundwater adjudications to be avoided in some areas, so, too, will SGMA, but the question to be answered through time is to what extent SGMA serves as a substitute for adjudications. Given wide-reaching dynamics and interests that vary tremendously from basin to basin, cooperation may not sufficiently exist. Or, even if cooperation does exist with the best of intentions for reaching mutually acceptable terms, the competing interests might be too steep to overcome.

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For the basins in which SGMA and the efforts of GSAs or stakeholders, or some combination thereof, appear to be in unresolvable conflict, a groundwater adjudication lawsuit might be filed. The future of groundwater adjudications may change dramatically with Assembly Bill ("AB") 1390, which seeks to create new procedures within the Code of Civil Procedure to expedite progression of these unique cases that typically last decades to resolve.64 AB 1390 focuses on "comprehensive adjudications," which involve basin-wide determinations. Arguably, a comprehensive adjudication could be triggered by simply filing a quiet title action because doing so determines the water right of one party from a water supply source from which many other stakeholders may also have water rights. Accordingly, to the extent SGMA does not help avoid a groundwater adjudication, AB 1390’s procedures are intended to correct the problems and delays often experienced in these cases.

The Public Trust Doctrine

Discussion about the public trust doctrine often occurs within academic and legal circles, though the doctrine has real world practical applications and consequences. Given SGMA’s sustainable goal of groundwater, the doctrine is deserving of discussion.

As one commentator has observed, "Concurrent with the rise of the modern environmental movement in the early 1970s, environmental advocates, notably Professor Joseph Sax, began promoting a broader application of the public trust doctrine that would extend its geographic reach beyond navigable waters … to include ecological, aesthetic, and recreational values, as well as other aspects of resource conservation."65

The leading case for the public trust doctrine in the "ecological" sense is National Audubon Society v. Superior Court (1983) 33 Cal. 3d 419, in which the California Supreme Court held that the public trust doctrine imposed an affirmative duty on the State Water Resources Control Board to reconsider the effects of permitted water withdrawals by the City of Los Angeles from non-navigable streams in the Sierra Nevada Mountains where such withdrawals significantly reduced inflow into Mono Lake.66

National Audubon presented a conflict between California’s appropriative water rights system and the public trust doctrine, which the Court described as "’the two systems of legal thought . . . on a collision course.’"67

The standard articulated in National Audubon reflects efforts to balance instream interests with consumptive needs.68 Professor Sax sought to protect public values with natural resource management, with the public trust doctrine serving to "balance the scales" by "inserting common public interests that states might otherwise wrongly exclude from resource management decisions."69

A question arises as to the extent to which the public trust doctrine needs to be applied to water resource management. While SGMA sets specific requirements for groundwater management and enforcement mechanisms as well as flexibility of how to achieve basin balance, SGMA does not allow agencies to recognize "undesirable results" from groundwater extractions without taking corrective actions.70 Accordingly, SGMA may indeed go further than the public trust doctrine, at least when viewing the public trust doctrine through the "procedural" lens described above, because the doctrine required consideration of impacts while SGMA requires corrective action to impacts.


While SGMA is new to California, the idea of ground-water management in the state is not so new. "In the further development of our water economy, planned management and integration seem not only desirable, but essential. Organization of course is necessary; forms of organization, including the public district, are available."71 Over 20 years later in 1977, it was said that "[a] serious management problem confronting existing districts is that districts often do not have jurisdiction over a manageable portion of a groundwater basin."72

With that "management and integration" paradigm here now, local agencies and stakeholders alike can undertake numerous efforts, independently and collectively, to better ensure SGMA’s sustainable goal is achieved without sacrificing stakeholders’ rights and interests, such as the following steps:

(1) Basin Boundaries: Engage the pending statewide process and local efforts to amend existing boundaries, such as consolidating areas in small basins or "subdividing" large basins into subbasins.

(2) GSA Formation: Learn where GSAs are being formed and develop strategies to ensure needed water supplies and related interests of big and small voices are protected. Where multiple GSAs may form within the same basin, dispute resolution procedures for intra-GSA basin and inter-GSA basin disputes should be among any GSPs and coordination agreements, as well as imposition of taxes, fees or assessments for GSA operations, potential infrastructure (e.g., monitoring wells) and enforcement.

(3) Know Your Water Rights And Proactively Protect Those Rights!

Whether steps above or others are taken, "California and its inhabitants will thrive or not thrive depending upon what happens to the state’s water [because] water is essential to the natural use of land and for the support of human life."73

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*. Wesley A. Miliband is Of Counsel with Stoel Rives LLP. Based in the Sacramento office, Wes serves clients statewide by focusing his legal practice on water resources with an emphasis on securing and protecting water supplies and water rights as well as the infrastructure necessary to treat, store and deliver water. His practice lends itself to related environmental issues involving water quality impacts to water supplies and regulatory permitting. Wes is cross-trained as advisory, transactional and trial counsel, having represented individuals and public and private entities inside and outside of the courtroom.

1. SGMA is commonly pronounced as "sigma," from the 18th letter of the Greek alphabet, The sigma symbol in mathematics refers to the "sum," which ironically is what SGMA is all about—an amount of groundwater quantified as the sustainable yield for a groundwater basin.

2. Water Code § 10720.1(a).

3. Copeland v. Fairview Land & Water Co. (1913) 165 Cal. 148, 154; Stanislaus Water Co. v. Bachman (1908) 152 Cal. 716, 725.

4. Big Rock Mutual Water Company v. Valermo Ranch Co. (1926) 78 Cal. App. 266, 274.

5. A "right to water" has also been declared by the Legislature, though it is a policy statement not intended to impose new obligations on water suppliers. Water Code § 106.3(a) states: "It is hereby declared to be the established policy of the state that every human being has the right to safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitary purposes."

6. Or, as one court of appeal recently observed, "California’s water rights system is not really dual but is instead tripartite, because some pueblo rights superior to riparian or appropriative rights exist." Siskiyou County Farm Bureau v. Department of Fish and Wildlife (June 4, 2015, Third App. Dist.) Case No. C073735, p. 6, fn. 3.

7. City of Pasadena v. City of Alhambra (1949) 33 Cal. 2d 908, 925.

8. Katz v. Walkinshaw (1903) 141 Cal. 116, 134-37.

9. City of Pasadena v. City of Alhambra (1949) 33 Cal. 2d 908, 925.

10. Wells A. Hutchins, California Ground Water: Legal Problems, 45 Cal. L. Rev. 688, 690 (1957).

11. Katz v. Walkinshaw (1903) 141 Cal. 116, 134-37.

12. City of Pasadena v. City of Alhambra (1949) 33 Cal. 2d 908, 926-27.

13. Wright v. Goleta Water District (1985) 174 Cal. App. 3d 74, 89; see also, Anne J. Schneider, Groundwater Rights in California (Background and Issues) (July 1977, Staff Paper No. 2, Governor’s Commission to Review California Water Rights Law), p. 77 & fn. 331, citing to Peabody v. Vallejo (1935) 2 Cal. 2d 351, 372.

14. Katz v. Walkinshaw (1903) 141 Cal. 116, 134.

15. Cal. Const., art. X, § 2 (1928 amendment).

16. Wells A. Hutchins, supra note 10, at 689, fn. 6, citing to Cal. Const. art. X, § 2; see also, Peabody v. Vallejo (1935) 2 Cal. 2d 351, 367-68.

17. Harold E. Rogers & Alan H. Nichols, Water for California (1967) § 147, p. 186.

18. Cal. Code Regs., tit. 23, § 659 et seq.

19. Ibid.

20. Harold E. Rogers & Alan H. Nichols, Water for California (1967) § 152, p. 196.

21. Hutchins, supra note 10, at 688.

22. The Legislature, however, did pass bills that became law in 1955 that require some groundwater users within the Counties of Riverside, San Bernardino, Los Angeles and Ventura to report to the state their water use. See, Water Code § 4999 et seq.


24. Harold E. Rogers & Alan H. Nichols, Water for California (1967) § 350, p. 488; see also, Water Code § 1200.

25. Los Angeles v. Pomeroy (1899) 124 Cal. 597, 628, 633-34.

26. Water Code § 10721(g).

27. Harold E. Rogers & Alan H. Nichols, Water for California (1967) § 249, p. 354, citing Los Angeles v. Hunter (1909) 156 Cal. 603, 607-08.

28. Surface water rights holders with "pre-1914" appropriative rights have long been thought by conventional wisdom to be immune from state regulation, yet with ongoing water supply shortages and drought conditions, the State of California and various pre-1914 holders have become entangled in several lawsuits recently filed based on the state’s attempt to curtail water diversions by pre-1914 water rights holders.

29. Water Code § 10722.4 identifies four priority levels: high, medium, low and very low.

30. Water Education Foundation, The 2014 Sustainable Groundwater Management Act: A Handbook to Understanding and Implementing the Law (2015), Tab 1, p. 5.

31. Ibid.

32. Water Code § 10721(t) [emphasis added].

33. Water Code § 10721(u) [emphasis added].

34. Water Code § 10721(w).

35. Water Code § 10721(j).

36. Water Code § 10722.2.

37. Water Code § 10733.2; see also, Water Code §§ 1072710728.4 for GSP requirements.

38. Water Code § 10733.6.

39. Water Code § 10729(d).

40. Water Code §§ 10724, 10735.2(a)(1).

41. Water Code § 10723.2.

42. Water Code § 10724.

43. Water Code § 10723.

44. Water Code § 10723(a), which also sets forth procedures local agencies must follow to become a GSA; see also, Water Code § 10723.8.

45. Water Code § 10732.6.

46. Water Code §§ 10725-10726.8, 10730-10732.

47. Modifications to basin boundaries occur during DWR Bulletin 118 updates pursuant to Water Code § 12924, starting with the original Bulletin 118 in 1952 and updates in 1975, 1980 and 2003.

48. Water Code § 10721(b). Stated more technically, a groundwater basin "may be defined as a hydrogeologic unit containing one large aquifer or several connected and interrelated aquifers." David Keith Todd, Groundwater Hydrology (2d ed. 1980), p. 47.

49. Water Code § 10721(c).

50. Water Code § 10722.2(a).

51. DWR’s Sustainable Groundwater Management Implementation—Basin Boundary Regulations Update (July 15, 2015 Presentation to the California Water Commission) available at: Item_9_Attach_1_Powerpoint.pdf.

52. Id.



55. See,, Basin Number 5-21.52. DWR has posted over 30 notices of local agencies seeking to become a GSA.

56. Water Education Foundation, The 2014 Sustainable Groundwater Management Act: A Handbook to Understanding and Implementing the Law (2015), Tab 2, p. 7.

57. Ibid. at p. 8.

58. Id.

59. Ibid. at p. 9.

60. Water Code § 10726.8(b); see also, Water Code § 10720.5. Water Code § 10723.2 requires interests of all beneficial users to be considered.

61. "Sustainable yield" means "the maximum quantity of water, calculated over a base period representative of long-term conditions in the basin and including any temporary surplus, that can be withdrawn annually from a groundwater supply without causing an undesirable result." Water Code § 10721(v).

62. See, e.g., Water Code §§ 1215 et seq. & 12200 et seq.

63. Water Code § 10750 et seq. arising from Assembly Bill 3030 in the 1992 California legislative session.

64. Assembly Bill 1390, if signed into law later this year, will take effect January 1, 2016 as Code of Civil Procedure sections 830 to 849.

65. Russell M. McGlothlin & Scott S. Slater, No Fictions Required: Assessing the Public Trust Doctrine in Pursuit of Balanced Water Management (Fall 2013) 17 U. Denv. Water L. Rev. 53, 61, citing Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention (1970) 68 Mich. L. Rev. 471, 556-67.

66. National Audubon Society v. Superior Court (1983) 33 Cal. 3d 419, 446-47.

67. Russell M. McGlothlin & Scott S. Slater, No Fictions Required: Assessing the Public Trust Doctrine in Pursuit of Balanced Water Management (Fall 2013) 17 U. Denv. Water L. Rev. 53, 62.

68. National Audubon Society v. Superior Court (1983) 33 Cal. 3d 419, 446.

69. Russell M. McGlothlin & Scott S. Slater, No Fictions Required: Assessing the Public Trust Doctrine in Pursuit of Balanced Water Management (Fall 2013) 17 U. Denv. Water L. Rev. 53, 67-68.

70. Water Code § 10721(w).

71. Hutchins, supra note 10, at 697.

72. Anne J. Schneider, Groundwater Rights in California (Background and Issues) (July 1977, Staff Paper No. 2, Governor’s Commission to Review California Water Rights Law), p. 40.

73. Harold E. Rogers & Alan H. Nichols, Water for California (1967) § 146, pp. 185-86.